NRPLUS MEMBER ARTICLE P rogressives are at it again, trying to convince Joe Biden to exceed his constitutional powers. This time, they want him to issue new public debt by executive order. Yet again, Biden is hesitant, but spineless, signaling that he might go along. Yet again, doing so would mean using powers that that even Barack Obama and Laurence Tribe once said were beyond the president’s authority. We’ve seen how this ends before, so we should not discount the possibility that Biden will once again violate his oath of office and act as a lawless rogue.

This time, the question is whether the 14th Amendment somehow empowers the president to borrow money without the consent of Congress. It doesn’t.

The Constitutional and Statutory Design

There were few things the Framers of the Constitution guarded more jealously than the power of the purse. Battles between crown and Parliament over the English king’s effort to fund his operations without raising money through the legislature had defined the years leading to the Glorious Revolution of 1688-89, and Parliament’s battle to supervise the king’s remaining independent expenditures was still ongoing in the mid 1780s. The vivid counterexample was in France, where the king’s ability to govern without calling the Estates General was the hallmark of absolute monarchy. The Founding generation equated the legislature’s control over raising and spending money with the survival of popular self-government, and its opposite with monarchy.

James Madison explained in Federalist No. 58 that this power was deliberately reserved to Congress, and specifically to the House as the branch of the government most directly responsive to the people — and that the Framers expected it to be used at times as a weapon to extract concessions from the rest of the government:

The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure. [Emphasis added.]

To effectuate this design, whatever other powers might be granted to the executive branch or even the courts, Congress alone could authorize money to be taxed, spent, borrowed, or coined. The Constitution is not ambiguous on this point: The first two powers of Congress listed in Article I, Section 8 are “to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States” and “to borrow Money on the credit of the United States.” Moreover, “All Bills for raising Revenue shall originate in the House of Representatives.” Article II, governing the powers of the executive, contains no mention of the president having any power to raise revenue or borrow money on his own.

The Radical Republican Congress that wrote the 14th Amendment in 1866 was just as insistent on its prerogatives, being then engaged in a struggle to wrest control of Reconstruction away from President Andrew Johnson. With ex-Confederates and their sympathizers returning to the political process in the South, the amendment aimed to deal with a number of threats a recalcitrant South was seen to pose to the nation’s democracy and individual liberties. One concern was that the Democrats, dominated by Southerners, might regain control of some or all of the federal government and try to repudiate the debts incurred by the Union during the Civil War. Another was to ensure that the Confederacy’s debts not be honored. Section 4 of the 14th Amendment dealt with both, although characteristically of the amendment, it was framed in general terms so as to make permanent rules rather than apply them solely to the Civil War:

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

A constitutional guarantee of the payment of war debts was not unprecedented. The Articles of Confederation had likewise promised that “all bills of credit emitted, monies borrowed, and debts contracted by, or under the authority of Congress, before the assembling of the United States, in pursuance of the present confederation, shall be deemed and considered as a charge against the United States, for payment and satisfaction whereof the said United States, and the public faith are hereby solemnly ple[d]ged.”

Congress in 1866 had cautionary examples on hand from world events. In 1861, the winners in Mexico’s civil war had repudiated the debts of the government they ousted. France, Britain, and Spain had sent a joint military expedition to collect those debts, which quickly morphed into a French effort to conquer Mexico. In Prussia, the legislature (the Landtag) tried to assert its power of the purse beginning in the early 1860s, but Chancellor Otto von Bismarck arranged financing to enable the king, Wilhelm I, to fund the army without asking the Landtag’s permission. Among other things, Bismarck sold stock in a railway owned by the government without the Landtag’s permission. After prosecuting successful wars against Denmark in 1864 and Austria in 1866 with funding not approved by the Landtag, Wilhelm and Bismarck decisively broke the power of the legislature and ended any hope of constitutional government in what would soon become the German Empire.

Now, consider how government debt worked in 1866 (or 1868, when the amendment was ratified by the states). Until the First World War, when the federal government wanted to issue Treasury bonds to borrow money, Congress passed a law outlining how much would be borrowed and on what terms. This sort of hands-on legislating was common in those days — for example, Congress also had to pass a new law every time it wanted to raise the price of a postage stamp.

Also, the federal government at the time had employees to pay, but it did not have the vast array of permanent expenditures it has today, programs such as Social Security, Medicare, and Medicaid that spend money on autopilot even if Congress does nothing. Nor did it routinely run large deficits. The baseline assumption against which the text was written was that Congress reassessed anew the federal government’s taxes, spending, and borrowing each year.

In short, the framers of the 14th Amendment would have anticipated that, if the country approached a default on its debt, it would be the responsibility of Congress, not the president, to address that — and they would also have anticipated that, if Congress failed to act, the federal government would stop spending money. Because presidents simply had no power to issue debt without Congress, the language at most imposed a duty on the executive to prioritize debt payments with the resources he had on hand. There is not the slightest evidence that anyone in 1866 would have thought they were amending Article I, Section 8 to create in the president an independent power to borrow money on the credit of the United States, any more than they were authorizing the president to levy taxes without Congress.

The system of managing government debt changed in 1917 with the Second Liberty Bond Act (a system that reached its current form in 1939). Instead of Congress authorizing specific bond issues one at a time, it would vote to authorize new debt in bulk, up to a specified limit, giving the Treasury the discretion to issue the bonds at times and on terms of its choosing. Crucially, what we call “the debt ceiling” is therefore not a restriction on the power of the executive; it is a permission to borrow a specified amount of money, without which the Treasury has no legal authority to borrow anything. Once it hits the limit, its permission is exhausted, and it must ask Congress for more.

Advocates of “the 14th Amendment option” are correct, of course, that if Congress fails to pay outstanding debts, it has violated the Constitution, and that the president and the secretary of the Treasury are obliged by their own oaths of office to act within their powers to avoid this so long as they can. But those advocates go off the rails in simply hand-waving away the part where the president’s actions must be within his own constitutional powers. Garrett Epps, for example, argues that Biden will have failed in his duties “if . . . the president obeys the debt ceiling.” Tribe argues for “ignoring the debt ceiling until Congress either raises or abolishes it.” But the debt ceiling is not a limit on Biden’s power, it is a grant of power; to go beyond it, Biden would be acting entirely outside of the powers of his office.

Tribe further argues that “proponents . . . say that when Congress enacted the debt limit . . . it built a violation of that constitutional command into our fiscal structure, and that as a result, that limit and all that followed are invalid.” But if the authorization of debt — which is what the “limit” is — was invalid, that doesn’t mean that there is no limit; it means that the debt itself was invalidly issued. That is a conclusion the 14th Amendment does not permit.

Tribe adds that “the right question is whether Congress — after passing the spending bills that created these debts in the first place — can invoke an arbitrary dollar limit to force the president and his administration to do its bidding. There is only one right answer to that question, and it is no.” But that is precisely what Madison expected Congress to do.

There is little judicial gloss on Section 4. The lone U.S. Supreme Court decision, Perry v. United States (1935), stands for little more than the truism that Congress lacks the power to abrogate its commitments to holders of federal debt. A few federal appeals decisions add only the observation that sovereign immunity can make it difficult for holders of Treasuries to enforce them in court without congressional consent. Nobody has even tried to test the idea that the 14th Amendment grants additional powers to the executive simply because Congress is slow to decide the terms of its next authorization of new debt or attaches conditions the president dislikes.

Presidents have no power to borrow money on our credit without the consent of our representatives. That basic reality is why it has been consistently recognized by Democrats, not just Republicans, that there is no “14th Amendment option.” Biden can take steps to delay default, and arguably he may even be constitutionally obligated to prioritize debt payments, if it came to that, over things like paying the Army and issuing Social Security checks — until he ran out of money entirely. But at the end of the day, the money comes from us, and it is Congress that has the power and the duty to raise it. Which the House has now done, albeit on terms Biden finds so painful that he refuses even to consider negotiating. But unless he can get House Republicans to blink politically, those are his only choices.